Recent cases alertR v Doherty [2019] NSWDC 515 — offender may have been vulnerable to a flawed thinking process but that does not significantly reduce offender’s moral culpability nor do offender’s psychological conditions make offender less of an appropriate vehicle for specific and general deterrenceR v Khan (No 11) [2019] NSWSC 594 — mental health considerations will not significantly moderate relevance of general deterrence in terrorism offences.Dennis v The Queen [2017] VSCA 251 — fourth limb of Verdins principles not enlivened where mental condition did not prevent offender from exercising choice between engaging in conduct or abstaining from it even though mental condition made it difficult for offender to learn from his mistakes.*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their mental condition:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(m) the character, antecedents, age, means and physical or mental condition of the person

Part IB, Division 9 of the Crimes Act 1914 (Cth) details different schemes available to courts sentencing federal offenders with a mental illness and/or an intellectual disability. For further information see federal commentary:

2. Definition of ‘Mental Condition’

The meaning of ‘mental condition’ in s 16A(2)(m) was considered in R v Verdins [2007] VSCA 102 which reformulated sentencing principles first expressed in R v Tsiaras [1996] 1 VR 398. 2 However, the Court in Verdins held that sentencing considerations regarding mental condition are not confined to a ‘serious psychiatric illness’ as it was in R v Tsiaras.3 The plurality in Verdins held at [5]:

The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of “serious psychiatric illness.” One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness. 4

3. When to consider Mental Condition

In DPP (Cth) v De La Rosa, McClellan CJ at CL (Simpson J and Barr AJ agreeing) held that despite an absence of legislative clarity, all aspects of an offender’s mental health and capacity must be considered when sentencing for a federal offence. McClellan CJ at CL stated at [171]:

Although an amendment which clarified the position would be advisable, the common law deals with the present situation. In DPP (Cth) v El Karhani (1990) 51 A Crim R 123, this Court determined (at 378) that the ss 16A and 16B catalogue of matters to which a court must have regard when sentencing a person for a federal offence is not comprehensive and further, that Part 1B is not exhaustive: see Putland at 181. The obvious example is the omission from s 16A(2) of any reference to general deterrence. The same reasoning would require the court to have regard to a person’s mental health or mental capacity. Whether because they are within the meaning of “mental condition” in s 16A(2)(m) or because they are required to be considered by the common law, all aspects of an offender’s mental health and mental capacity must be considered when sentencing that person … (emphasis added). 5

Simpson J, adding to the reasons of McClellan CJ at CL, made the following observation at [180] with which McClellan CJ at CL and Barr AJ agreed: 6

In my experience, as a sentencing judge, and having observed sentencing practices from this Court, distress and anxiety, referable to the anticipated sentencing process, will be taken into account – where demonstrated. It will not be presumed. To fail to take it into account, where there is relevant accepted evidence, would, in the case of federal sentencing, be contrary to s 16A(2)(m). The weight to be accorded to such evidence will vary from case to case.

I am unpersuaded that her Honour was not entitled to reject Mr Gorrell’s [the psychiatrist’s] ‘diagnosis’ of PTSD. His reference to the 2010 diagnosis by a psychiatric registrar arguably underpinned every reference to PTSD thereafter. Simply recording the fact that the applicant expressed feelings consistent with some of the DSM 5 criteria for PTSD, and attaching those criteria to his report, falls short, in my view, of an independent diagnosis. Mr Gorrell was not qualified to make a definitive diagnosis. It remained doubtful that the applicant had established the diagnosis to the relevant standard (emphasis added).

Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender’s psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe (emphasis added).9

5.1 Mental Condition as a mitigating factor

Courts have identified a number of circumstances in which an offender’s mental condition may have a mitigating effect on the sentence imposed.

In R v Verdins [2007] VSCA 102, the Victorian Court of Appeal reformulated sentencing principles first expressed in R v Tsiaras [1996] 1 VR 398, 400. 10 The Court in Verdinsstated at [32] that mental condition may be relevant in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

5.1.1 Mental Condition and culpability

Culpability goes to the first Verdins principle. An offender’s moral culpability may be reduced if they have a mental condition which, while falling short of an excuse at law, contributes to the commission of the offence. 11

To the extent that mental illness explains the offence … then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. 12

[T]he greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed… (emphasis added). 13

5.1.1.1 Causal connection required

The offender’s mental condition must be causally connected to the commission of the offence for the offender’s moral culpability to be lessened. 14 In Ibrahim v The Queen [2016] NSWCCA 6, Bellew J (MacFarlan JA and Rothman J agreeing) held at [36]:

[The psychologist] did not suggest that the applicant’s mental state was causally connected to her offending. Accordingly, the applicant’s mental state did not provide any basis for a lessening of her moral culpability (emphasis added).

In R v Thorn [2016] ACTSC 217, Refshauge J observed that while the offender suffered from mental impairment, it was not at such a level as to be causative to his offending. His Honour held at [77]:

My assessment is that Mr Thorn’s mental impairment is a significant indirect contributor to his offending. It seems to me he is vulnerable and easily led, with some limited capacity to appreciate all the consequences of his actions. Nevertheless, his participation in the offending had a significant level of culpability. I do not consider that his mental impairment contributed directly in any significant way to the commission of these offences (emphasis added).

5.1.1.2 Impairment of mental functioning must be involuntary

Impairment of mental functioning must be involuntary to allow moral culpability to be reduced. 15 For example, in DPP (Cth) v Boyles [2016] VSCA 267, the first limb of the Verdins principle was not enlivened as the offender had chosen not to take prescription medication when he was aware of the adverse effects of not doing so. Maxwell P and Osborn JA (Tate JA agreeing) held at [42]-[43]:

Where Verdins 1 is relied on in mitigation, the offender must establish that his mental functioning was impaired involuntarily. That is, his ability to reason or make decisions was adversely affected by a mental condition beyond his control, such that he should be regarded as less morally culpable for the offending than someone who had not been so affected.

In the present case, the fundamental cause of the active bipolar state in which RB committed the offences was his own choice not to take medication prescribed by a specialist medical practitioner. He well knew the nature of the condition he was suffering from and he knew that, in the absence of medication, his mood and behaviour might be affected (emphasis added; footnotes omitted).

5.1.2 Mental Condition and sentence conditions imposed

Sentence conditions imposed goes to the second Verdins principle. The offender’s mental condition may have a bearing on what sentence conditions are imposed. In R v White [2016] ACTSC 237, Elkaim J considered alternatives to a custodial sentence. At [29]-[30], [32]:

I have come to the conclusion that the offender’s mental disability, which he suffers, has suffered at all relevant times, and will continue to suffer, should be regarded as an exceptional circumstance. It affects not only his moral culpability in the offence but also, as noted by the Crown, the offender would “run a high risk of suicide” if sentenced to full-time imprisonment.

I therefore do not propose to impose a sentence of full-time imprisonment.
…

I have come to the conclusion that the appropriate course I should take is by way of a term of imprisonment which is suspended with immediate effect together with a Good Behaviour Order and Recognizance Order with appropriate conditions. The only condition suggested by the defence, and the Crown, related to the offender attending appropriate counselling. I will impose such a condition (emphasis added).

5.1.3 Mental Condition and the effect of a custodial sentence

Effect of a custodial sentence goes to the fifth and sixth Verdins principles. In the case of an offender with a mental condition, particular consideration must be given to the effect of any custodial sentence on that person. 16

For example, in R v Kent [2009] VSC 375, the offender pleaded guilty to one count of being a member of a terrorist organisation and one count of making a document connected with preparation for a terrorist act. Bongiorno JA considered the effect of a high security prison on the offender’s mental state, where the offender suffered from depressive disorder and substance abuse. It was observed at [41]:

The fact that Kent is currently suffering a psychiatric disorder… makes it appropriate to take into account the probable conditions under which he will serve his sentence and the effect of those conditions on his psychological state. 17

In R v Joffe; R v Stromer [2015] NSWSC 741, Hulme J considered a custodial sentence would be more onerous for the offender as the offender suffered from anorexia nervosa. 18 A custodial sentence was imposed with an immediate recognizance release order.

However in R v Donald [2013] NSWCCA 238, where the offender suffered from bipolar disorder, Latham J (Hidden and Adamson JJ agreeing) did not accept that the offender’s mental condition would make a custodial sentence more onerous as there was no evidentiary basis the sentence would be more burdensome for the offender than other offenders. The court held at [77]:

I also accept the Crown’s submission that there was no evidentiary basis for the finding that the respondent’s time in custody would weigh more heavily upon him than other offenders. The evidence established that the bipolar disorder was in remission and that the respondent was adequately medicated.There was no basis to assume that the respondent would not receive appropriate treatment in custody (emphasis added).19

5.2 Mental Condition and other sentencing considerations

[M]ental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence (emphasis added). 21

6. Mental condition and rehabilitation

The rehabilitative prospects of an offender suffering from a mental condition may be considered in sentencing. However, courts should remain conscious of s 16A(2)(n), which refers specifically to the offender’s prospect of rehabilitation.

The ALRC recommends that federal sentencing legislation be amended to define the terms ‘mental illness’ and ‘intellectual disability’, and to include those terms in addition to ‘mental condition’: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006), recommendations 28-4 – 28-5. See also Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, [165]-[171] for a discussion of these recommendations and state sentencing law. ↩